Citation Nr: 0511626
Decision Date: 04/25/05 Archive Date: 05/03/05
DOCKET NO. 03-20 770 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to service connection for a respiratory
disorder, to include chronic obstructive pulmonary disease
and chronic bronchitis, as the result of asbestos exposure.
2. Entitlement to service connection for headaches.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
A. P. Simpson, Counsel
INTRODUCTION
The veteran served on active duty from April 1962 to April
1965.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a December 2002 rating decision of the
Oakland, California, Department of Veterans Affairs (VA)
Regional Office (RO). The RO denied service connection for a
respiratory disorder as the result of asbestos exposure and
for headaches.
In the rating decision on appeal, the RO also denied service
connection for a heart disorder, a low back disorder, ulcer,
and hernia. The veteran filed a notice of disagreement as to
these issues, and a statement of the case was issued. In the
veteran's VA Form 9, Appeal to the Board of Veterans'
Appeals, he limited his appeal to the two issues listed on
the title page. Thus, those are the only issues on appeal.
FINDINGS OF FACT
1. Competent evidence of a nexus between the diagnoses of
chronic obstructive pulmonary disease and chronic bronchitis
and service, to include in-service asbestos exposure, is not
of record.
2. Competent evidence of disability of headaches due to
disease or injury in service is not of record.
CONCLUSIONS OF LAW
1. A respiratory disorder, to include chronic obstructive
pulmonary disease, chronic bronchitis, and emphysema, was not
incurred in or aggravated by service. 38 U.S.C.A. §§ 1110,
1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303
(2004).
2. Headaches were not incurred in or aggravated by service
and are not proximately due to or the result of a service-
connected disability. 38 U.S.C.A. §§ 1110, 1131, 5103,
5103A, 5107; 38 C.F.R. § 3.303.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify & Assist
The President signed into law the VCAA on November 9, 2000.
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002). The
legislation provides, among other things, for notice and
assistance to claimants under certain circumstances. VA has
issued final rules to amend adjudication regulations to
implement the provisions of the VCAA. See 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326(a). These regulations
establish clear guidelines consistent with the intent of
Congress regarding the timing and the scope of assistance VA
will provide to a claimant who files a substantially complete
application for VA benefits.
As required by 38 U.S.C.A. § 5103(a), prior to the initial
unfavorable agency of original jurisdiction decision, the
claimant must be provided notice consistent with 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) which must: (1) inform the
claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek
to provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in the
claimant's possession that pertains to the claim, or
something to the effect that the claimant should give VA
everything the veteran has in his possession pertaining to
the claim.
In the instant case, VA has notified the veteran of the
information and evidence not of record that is necessary to
substantiate his claim for service connection for a lung
disorder and headaches in March 2002 and March 2004 letters.
VA informed the veteran that in order to establish service
connection for a disability, he would need to bring forth
evidence of a disease or injury in service, a current
disability, and a relationship between the current disability
and service. VA noted that evidence of a current disability
and of a relationship between the current disability and
service was usually shown by medical evidence.
The letter also notified the veteran that VA was responsible
for getting relevant records held by any federal agency,
which included medical records from the military, from VA
hospitals (including private facilities where VA authorized
treatment), or from the Social Security Administration. VA
also told the veteran that on his behalf, it would make
reasonable efforts to obtain any relevant records not held by
a federal agency, which could include records from state or
local governments, private doctors and hospitals, and current
or former employers. VA noted that in order to obtain any
records, the veteran would need to provide it with enough
information about the records so that VA could request them
from the person or agency who had them. Finally, in the
March 2002 letter, the RO stated, "Tell us about any
additional information or evidence that you want us to try to
get for you." In the March 2004 letter, the RO stated, "If
you have any evidence in your possession that pertains to
your claim, please send it to us."
Additionally, VA has notified the veteran the reasons why
service connection has been denied in the December 2002
rating decision, the May 2003 statement of the case, and the
July 2003 supplemental statement of the case. The May 2003
statement of the case also fully provided the laws and
regulations pertaining to entitlement to the benefits sought.
The Board finds that the duty to notify the veteran has been
satisfied under the circumstances of this case. 38 U.S.C.A.
§ 5103.
The Board recognizes that the March 2004 VCAA notice, which
is the more complete notice as contemplated by the VCAA, was
subsequent to the December 2002 rating decision which gave
rise to this appeal; however, the Board finds no prejudice to
the veteran. The veteran was adequately furnished with the
type of notice required by VCAA in March 2004 and has had an
opportunity to identify evidence and submit evidence in
connection with his claims. In April 2004, the veteran
submitted a statement, asserting that he had provided VA with
all the evidence for his claims. Therefore, any error
resulting from VCAA notice subsequent to the initial rating
decision was harmless error, as it pertains to these issues.
See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO's
subsequent actions and notice to the veteran effectively
cured any VCAA notice defect. See Pelegrini v. Principi,
18 Vet. App. 112 (2004).
VA must also make reasonable efforts to assist the claimant
in obtaining evidence necessary to substantiate the claim for
the benefit sought, unless no reasonable possibility exists
that such assistance would aid in substantiating the claim.
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2004). In connection
with the current appeal, the veteran has submitted private
medical records. He has not indicated the existence of any
additional records that would aid in substantiating the
claims, and, in fact, has stated he has no additional
evidence to submit.
Although an examination was not provided in connection with
the veteran's claims for service connection, Board finds that
VA was not under an obligation to provide an examination, as
such was not necessary to make a decision on the claims.
Specifically, under the law, an examination or opinion is
necessary to make a decision on the claim when the record (1)
contains competent evidence that the claimant has a current
disability or persistent or recurrent symptoms of the
disability; (2) contains evidence which indicates that the
disability or symptoms may be associated with the claimant's
active duty; and (3) does not contain sufficient medical
evidence for VA to make a decision. See 38 U.S.C.A.
§ 5103A(d). Here, the evidence does not indicate that the
disabilities may be associated with the veteran's active
service. See Wells v. Principi, 326 F.3d 1381 (Fed. Cir.
2003) (VA was not required to provide the veteran with a
medical examination absent a showing by veteran of a causal
connection between the disability and service). While the
veteran has a current diagnosis of chronic obstructive
pulmonary disease and chronic bronchitis, he has not brought
forth any evidence suggestive of a causal connection between
those disabilities and service, to include asbestos exposure.
The RO informed him that he would need medical evidence of a
relationship between the current disability and service, and
the veteran has not provided such evidence. Regarding the
claim for headaches, there is no competent evidence that the
veteran has a disability manifested by headaches. Therefore,
VA did not need to provide examinations in connection with
the veteran's claims.
For the foregoing reasons, the Board concludes that all
reasonable efforts were made by the VA to obtain evidence
necessary to substantiate the claims. The Board finds that
the evidence of record provides sufficient information to
adequately evaluate the claims, and the Board is not aware of
the existence of any additional relevant evidence which has
not been obtained. Therefore, no further assistance to the
veteran with the development of evidence is required.
38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d).
II. Decision
The veteran asserts that he has developed a lung disorder and
headaches from exposure to asbestos in service while on a
ship. Specifically, he states that he was a gunners mate and
maintained the gun mounts on deck and below the decks in the
magazines. He states that he worked as a seaman and pulled
watch on the bridge, where "asbestos was all around [us]."
The veteran asserts that asbestos was used to insulate the
pipes and that he had to lay next to them while he slept in
his bunk from 1963 to 1965. Alternatively, regarding his
headaches, he states that the headaches are the result of the
lung disorder.
Of record are service medical records and private medical
records, dated from January 1988 to August 2002.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1131 (West 2002). Service connection may be
granted for any disease diagnosed after service when all the
evidence establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d) (2004).
The chronicity provision of 38 C.F.R. § 3.303(b) is
applicable where the evidence, regardless of its date, shows
that the veteran had a chronic condition in service or during
an applicable presumption period and still has such
condition. Such evidence must be medical unless it relates
to a condition as to which, under the United States Court of
Appeals for Veterans Claims' case law, lay observation is
competent. Savage v. Gober, 10 Vet. App. 488, 498 (1997).
In addition, if a condition noted during service is not shown
to be chronic, then generally a showing of continuity of
symptomatology after service is required for service
connection. 38 C.F.R. § 3.303(b) (2004).
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
The Board has carefully reviewed the evidence of record and
finds that the preponderance of the evidence is against the
grant of service connection for a lung disorder, to include
chronic obstructive pulmonary disease and chronic bronchitis.
The service medical records are silent for any findings
related to the lungs. The separation examination showed that
clinical evaluation of the lungs and chest was normal. A
chest x-ray was also normal. The first showing of a
diagnosis of chronic obstructive pulmonary disease was in
1996, which is more than 30 years following the veteran's
service. There is no objective evidence of a lung disorder
or breathing problem prior to 1996. No medical professional
has attributed the post service diagnoses of chronic
obstructive pulmonary disease and chronic bronchitis to the
veteran's service, to include exposure to asbestos. In a
June 2001 private medical record, a physician entered a
diagnosis of, "History of smoking greater than
40 years/chronic obstructive pulmonary disease," and, it
would appear from this that the examiner was attributing the
diagnosis of chronic obstructive pulmonary disease to the
veteran's smoking. Regardless, the examiner did not
attribute the diagnosis of chronic obstructive pulmonary
disease to the veteran's service, to include in-service
asbestos exposure. In fact, in none of the medical records
that show diagnoses of chronic obstructive pulmonary disease
and chronic bronchitis does the examiner note a history of
asbestos exposure or otherwise attribute the diagnoses to
service.
Regarding the claim for service connection for headaches, the
Board has carefully reviewed the evidence of record and finds
that the preponderance of the evidence is against the grant
of service connection for headaches. The service medical
records are silent regarding headaches. The post service
medical records show that in December 1997, the veteran
denied any headaches. In March 1999, the veteran reported
having chronic, intermittent headaches that would occur in
the evening when he would begin to relax, which would
eventually subside. No diagnosis of headaches was entered.
In fact, none of the medical records in the claims file shows
a diagnosis of headaches due to a disease or injury. Rather,
they show that the veteran has complained of headaches.
Service connection is warranted for a "disability resulting
from personal injury suffered or disease contracted in line
of duty, or for aggravation of a preexisting injury suffered
or disease contracted in line of duty . . . ." 38 U.S.C.A.
§§ 1110, 1131; see also 38 C.F.R. § 3.303(a); see Sanchez-
Benitez v. Principi, 259 F.3d 1356, 1361 (Fed. Cir. 2001)
(absent a disease or injury incurred during service, a
veteran cannot satisfy the basic VA compensation statutes).
Here, the veteran has not brought forth competent evidence of
a disability manifested by headaches that is the result of
disease or injury in service or the result of a service-
connected disability. Therefore, without competent evidence
of a current "disability" related to, or underlying, the
veteran's symptoms of headaches, service connection cannot be
granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992) (Court stated "Congress specifically limits
entitlement for service-connected disease or injury to cases
where such incidents have resulted in a disability," and
held "[i]n the absence of proof of a present disability[,]
there can be no valid claim"); Rabideau v. Derwinski, 2 Vet.
App. 141, 143-44 (1992).
While the veteran has stated that his current disabilities
are attributable to asbestos exposure in service, and, in the
alternative, that his headaches are the result of the lung
disorder, he is not competent to make that assertion, as that
requires a medical opinion. See Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992). As there is no competent evidence
linking the pulmonary diagnoses to asbestos exposure, there
is no need to make a finding as to whether there was actual
exposure to asbestos during service.
For the reasons stated above, the Board finds that the
preponderance of evidence is against the veteran's claims for
service connection for a respiratory disability, to include
chronic obstructive pulmonary disease and chronic bronchitis,
and headaches, and there is no doubt to be resolved. See
Gilbert, 1 Vet. App. at 55.
ORDER
Service connection for a respiratory disorder, to include
chronic obstructive pulmonary disease and chronic bronchitis,
is denied.
Service connection for headaches is denied.
_________________________________________
JEFF MARTIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs